Wayne Napolitano v. Malden City Solicitor (SPR 20201984)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 29, 2020 SPR20/1984 Kenneth J. Rossetti, Esq. Assistant City Solicitor Legal Department City of Malden 110 Pleasant Street Malden, MA 02148 Dear Attorney Rossetti: I have received the petition of Wayne Napolitano appealing the response of the City of Malden (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 19, 2020, Mr. Napolitano requested “a record of all internal affairs complaints and lawsuits filed against members of the Malden police department from 2010 through 2019.” Previous Appeal The requested records were the subject of a previous appeal. See SPR20/1479 Determination of the Supervisor of Records (September 10, 2020); SPR20/1865 Determination of the Supervisor of Records (October 15, 2020). In my October 15th determination, I found the City provided a supplemental response on October 5, 2020 addressing Mr. Napolitano’s appeal. Unsatisfied with City’s response, Mr. Napolitano petitioned this office and this appeal, SPR20/1984, was opened as a result. Current Appeal In its October 5th response, the City explains “that since Mr. Napolitano’s correspondence was not an internal affairs complaint, Mr. Napolitano’s 9/12/19 email to the MPD was not responsive to his public records request; accordingly, that email was not incorporated into the City’s response.” The City contends “…compliance with the Public Records Law does not require a custodian to mischaracterize the nature of a document that the requestor created and possesses, in order to shoehorn the document within the scope of responsiveness of the requestor’s public records request.” One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Kenneth J. Rossetti, Esq. SPR20/1984 Page 2 October 29, 2020 Subsequent to the opening of this appeal, the City provided an additional response on October 19, 2020. In its October 19th response, the City asserts “Mr. Napolitano’s appeal is without merit and should be rejected for two reasons. First, consistent with the Supervisor’s ruling, the subject appeal is moot because the City has already furnished Mr. Napolitano with the records that he requested… [s]econd, no matter how many times he mischaracterizes his previous submission to the Malden Police Department, Mr. Napolitano is not entitled to mischaracterize his self-styled IA complaint in order to allege the City’s violation of the Public Records Law (‘PRL’). Indeed, PRL compliance does not compel the records custodian to adopt the requestor’s mischaracterization of a document that the requestor created and possesses, nor is the custodian obligated to produce documents that are not responsive to the requestor’s request.” Based on the City’s responses, where it confirms it has no additional records responsive to Mr. Napolitano’s request, I find the City has met its burden in responding to the request. Conclusion In light of the above, I consider this administrative appeal closed. If Mr. Napolitano is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth, G. L. c. 66, § 10(b) pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Wayne Napolitano